Re The Crown in right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Ranger)
[Indexed as: Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Ranger) (Re)]
File No.: 2002-2375 Ontario Crown Employees Grievance Settlement Board D.J.D. Leighton
Heard: July 27 and 28, 2004 Decision rendered: October 6, 2004
INTERIM AWARD concerning request for interim relief. Motion granted.
G. Leeb, for the union. F Murji, for the employer.
INTERIM AWARD
The union seeks an interim relief order from the board to direct the employer to place the grievor, Mr. Ranger, in an appropriate position (but not in a correctional officer's position) that accommodates his medical restrictions, within 15 days of the release of the order. In the alternative the union seeks an order that the grievor be put back on the payroll, if and when the grievor's LTIP expires. In a further alternative the union seeks an order that the employer pay the grievor the equivalent of his LTIP benefits, until his return to work or the end of this hearing.
The employer opposes the motion, chiefly on the grounds that an order requiring the employer to accommodate the grievor is akin to a final order, and therefore not appropriate as an interim relief order.
The grievor has been a correctional officer with the Ministry since 1991. His grievance dated December 19, 2002 alleges:
That the employer is in violation of specifically but not exclusively Articles 3, No Discrimination/Employment Equity and 9, Health and Safety and Video Display Terminals. The employer has condoned and continues to condone direct employee and management harassing behaviour that has created a poisoned work environment. The poisoned environment has caused me to suffer harassment and discrimination due to my sexual orientation.
The remedy sought amongst other things includes:
That upon medical clearance to work, or in the event that I no longer qualify to receive disability benefits, I be placed on a paid leave of absence as a Correctional Officer 2. The paid leave of absence will continue until the employer can demonstrate to an independent outside consultant that has expertise in workplace harassment and discrimination issues, that the employer has successfully eradicated all systemic and direct discrimination on all prohibited grounds in the Collective Agreement and the Ontario Human Rights code. This undertaking will apply to all workplaces controlled directly or indirectly by the Ministry of Public Safety and Security.
Mr. Ranger was on sick leave when he filed this grievance. The medical evidence before me establishes that the grievor was able to return to work in September 2003, provided that he does not return to a correctional facility.
The grievor testified that he has suffered significant financial losses because of his reduced income. Further, there has been a significant emotional impact on him because he has not been returned to work, which is beginning to affect his health adversely. The medical evidence is that it would be much better for the health of the grievor to be working.
The employer tendered no evidence.
Counsel for the employer, Ms. Murji, agreed with the union that this board has the jurisdiction to order interim relief in appropriate circumstances, but argued that this was not one of them. Ms. Murji argued that while it might be appropriate to make an interim relief order in a termination case, it is not appropriate here. Employer counsel argued that in a termination case the grievor's job is clearly identified. But in this case the union is requesting that the employer "take positive action" to find another position for the grievor, which counsel argues is not appropriate. In counsel's submission interim relief should only preserve the status quo.
Counsel further submitted that while an order to place the grievor in a position outside a correctional facility was a potential remedy, it should only be ordered after the case is proven on the merits. Counsel argued that such an order could only be made after the union had proved that the grievor suffered discrimination and harassment and the employer had failed to show a due diligence defence. Ms. Murji also argued that the delay in bringing the motion is a factor that should be considered to deny the interim relief.
Counsel relied on the following cases in support of the employer's submission. Re Morrison Meat Packers Ltd. and U.A.W., [1993] O.L.R.B. Rep. April 358 (Herlich); Re Toronto Transit Commission and A.T. U., Loc. 113 (1994), 42 L.A.C. (4th) 61 (Kennedy); Re William Neilson Ltd. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Loc. 647, [1994] O.L.R.B. Rep. March 326 (Shouldice); Re Religious Hospitallers of Hotel-Dieu of St. Joseph of the Diocese of London and O.N.A. (1995), 48 L.A.C. (4th) 180 (McLaren); Re Ontario (Management Board Secretariat) and O.P.S.E. U. (2002) GSB 0610/02 (Petryshen).
Counsel for the union, Mr. Leeb, argued that this board has the jurisdiction to award interim relief without hearing the case on the merits, and that in the right circumstances, that is the whole purpose of interim relief. Mr. Leeb submitted that the relief requested here flows from the merits of the grievance: the grievor is seeking the right to work in an environment without harassment on the basis of his sexual orientation and without risk to his health.
Counsel for the union cited the following cases in support of his argument that interim relief should be ordered in this case: Re Ontario (Ministry of Labour) and O.P.S.E. U. (Nield) (1996) GSB 1471/96 (Roberts), (upheld on Judicial Review); Re Ontario (Ministry of Health) and O.P.S.E.U. (Belanger et al.) (1997) GSB 976/93 (Kaufman): Re Ontario (Ontario Human Rights Commission) and O.P.S.E. U. (Fox) (2001) GSB 0507/01 et al. (Stewart); Re Ontario (Management Board Secretariat) and O.P.S.E. U. (2003) GSB 0001/03 (Stewart) [reported 117 L.A.C. (4th) 128]; Re Ontario (Management Board Secretariat) and O.P.S.E. U. (Union Grievance) (1997) GSB 1186/97 (Dissanayake); Re Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Stewart) (1995) GSB 1000/94 (Gorsky); Re Ontario (Ministry of Health) and O.P.S.E. U. (Montgomery/Rankin) (1995) GSB 2624/94 et al. (Finley); Re Ontario (Ministry of Correctional Services) and O.P.S.E. U. (Sammy et al.) GSB 0224/2001 (Harris).
Having carefully considered the submissions of the parties on the first issue of whether in the circumstances interim relief could be appropriate in this case, I am persuaded that it is the kind of interim relief that the board has the jurisdiction to order. Section 48(12)(i) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1 Sch. A, provides arbitrators with the power "to make interim orders concerning procedural matters".
As noted by chair Stewart in Fox et al., since the seminal case Nield first granted interim relief under s. 48 (12)(i) of the Act, the board has developed a consistent body of jurisprudence broadly interpreting this power. The Chair noted that the Divisional Court's review of Nield endorsed a "broad meaning" of the phrase "procedural matters". Thus, it is well established that the board has the jurisdiction to order interim relief, provided that the relief is not dispositive of the grievance and the union is able to satisfy the test for interim relief.
In the case before me the issue is whether the employer has violated the grievor's human rights. The grievor alleges that his workplace is poisoned and he seeks to work in a healthy, non-poisoned workplace. I am of the view that an order to accommodate the grievor in an alternate workplace, while the hearing on the merits proceeds, is not dispositive of the grievance. Thus I am not persuaded that this order should only be made after the case is heard on the merits. As to the employer's submission that interim relief should only preserve the status quo, a review of the board's decisions reveals that this is not the case. The board has made interim relief orders requiring positive action (See Sammy and Belanger by way of example).
The next issue is whether the union meets the test for interim relief. The test as identified by the board in Sammy is (1) that there must be an arguable case on the merits of the grievance and (2) the board must balance the potential harm or inconvenience of the parties. Ms. Murji conceded that the union has an arguable case, therefore the only issue to be decided is the balance of harm or convenience. The employer counsel also acknowledged that the test of "irreparable harm" has been rejected by the board in favour of a balancing of potential harm or inconvenience of the parties.
Counsel for the union argued that the harm to the grievor of not returning to work outweighs any harm to the employer in this case. Mr. Leeb relied on the evidence of the grievor that Mr. Ranger is suffering significant financial hardship. He argued further that the medical evidence suggests that the grievor's health is being adversely affected by remaining out of the workplace. Counsel also submitted that the employer provided no evidence of harm.
Regarding the issue of the employer's harm, Ms. Murji argued that the harm to the employer is that the order would 1) displace others, 2) thwart the accommodation process, and 3) be difficult because of insufficient information on how to accommodate the grievor. Counsel also argued that mere financial harm to the grievor was not enough to warrant interim relief.
After careful consideration, I have decided that the potential harm to the grievor outweighs the inconvenience or potential harm to the employer. The potential harm to the employer, identified by counsel in argument, is avoidable. First, the board is not making an order to displace another employee, nor did the union ask for this. Second, this order need not thwart any accommodation process. Nor does it change the grievor's duty to provide information, as necessary, to facilitate accommodation.
While there is nothing before me to suggest inconvenience or potential harm to the employer, the potential harm to the grievor is significant. I find this chiefly because the medical evidence indicates for the sake of his health, the grievor needs to return to work. Also, Mr. Ranger's own evidence is that being isolated at home without work has significantly diminished his sense of self-worth. The courts and arbitrators have long recognized the importance of employment to a person's dignity and self-worth. The potential harm to the grievor here is perhaps the most significant. Finally, the impact on Mr. Ranger's finances has also been considerable.
Had the union's request for Mr. Ranger to return to work not involved accommodation this order would be straightforward. However, in effect, what the union has asked for is interim accommodation, and there is never an absolute guarantee that accommodation will be achieved. The employer's duty is to accommodate to the point of undue hardship. Therefore the order here has to recognize that obligation and its limits. The grievor is also obliged to cooperate in the accommodation process.
Thus the union's motion for an interim relief order is granted. The employer shall make its best efforts to accommodate the grievor in a suitable position, consistent with the medical opinions provided, within 30 days of this order. If the employer is unable to place the grievor in a suitable position within 30 days, the grievor shall be placed back on the payroll, and the employer shall continue to make its best efforts to accommodate the grievor. This interim relief order shall expire when the decision on the merits is issued.